IN THE WAKE of the Sept. 11, 2001, attacks, the New York Times
reported last week, President Bush authorized the National Security Agency to
conduct electronic surveillance of hundreds of U.S. citizens and residents suspected of contact with al Qaeda
figures -- without warrants and outside the strictures of the law that governs
national security searches and wiretaps. The rules here are not ambiguous. Generally
speaking, the NSA has not been permitted to operate domestically. And the
Foreign Intelligence Surveillance Act (FISA) requires that national security
wiretaps be authorized by the secretive FISA court. "A person is guilty of
an offense," the law reads, "if he intentionally . . . engages in
electronic surveillance under color of law except as authorized by
statute" -- which appears, at least on its face, to be precisely what the
president has authorized.

Mr. Bush, in his weekly
radio address yesterday, defended his action, chastised the media for revealing
it, and suggested both that Congress had justified this step by authorizing
force against al Qaeda and that such spying was consistent with the
"constitutional authority vested in me as commander in chief." But
there is a reason the CIA and the NSA are not supposed to operate domestically:
The tools of foreign intelligence are not consistent with a democratic society.
Americans interact with their own government through the enforcement of law.
And in those limited instances in which Americans become intelligence targets,
FISA exists to make sure that the agencies are not targeting people for
improper reasons but have sufficient evidence that Americans are actually
operating as foreign agents. Warrantless intelligence surveillance by an
executive branch unaccountable to any judicial officer -- and apparently on a
large scale -- is gravely dangerous.

Why the administration
even deems it necessary remains opaque. Mr. Bush said yesterday said that the program
helped address the problem of "terrorists inside the United States . . . communicating with
terrorists abroad." Intelligence officials, the Times reported, grew
concerned that going to the FISA court was too cumbersome for the volume of
cases cropping up all at once as major al Qaeda figures -- and their computers
and files -- were captured. But FISA has a number of emergency procedures for
exigent circumstances. If these were somehow inadequate, why did the
administration not go to Congress and seek adjustments to the law, rather than
contriving to defy it? And why in any event should the NSA -- rather than the
FBI, the intelligence component responsible for domestic matters -- be doing
whatever domestic surveillance needs be done?

As with its infamous
torture memorandum, the administration appears to have taken the position that
the president is entitled to ignore a clearly worded criminal law when it
proves inconvenient in the war on terrorism. That argument is not as outlandish
in the case of FISA as it is with respect to the torture laws, since
administrations of both parties have always insisted on the executive's
inherent power to conduct national security surveillance. Still, FISA has been
the law of the land for 2 1/2 decades. To disrupt it so fundamentally, in total
secret and without seeking legislative authorization, shows a profound
disregard for Congress and the laws it passes.

What's more, Mr. Bush's
general assurances that the program is legal offer no indication of what legal
authority, if any, permits this surveillance of what he described as "the
international communications of people with known links to al Qaeda and related
terrorist organizations." In the torture context, the administration
abandoned the argument that the president could simply disregard laws
prohibiting brutal interrogations and moved on to other legal theories. There
is reason to think something similar has happened here. Does the administration
now claim that warrantless surveillance of hundreds of people by an agency
generally barred from domestic spying is consistent with FISA? Does it claim
that the congressional authorization to use military force against al Qaeda
somehow unties the president's hands? Other than claiming it has done nothing
illegal, the administration is not saying.

Congress must make the
administration explain itself. In the aftermath of the revelations, Senate
Judiciary Committee Chairman Arlen Specter (R-Pa.) said hearings on the matter
would be a high priority in the coming year. That's good. It should be
unthinkable for Congress to acquiesce to such a fundamental change in the law
of domestic surveillance, particularly without a substantive account of what
the administration is doing and why.